In this case the judgment of the trial court was affirmed by a divided Court at the last term. A petition for rehearing was filed and granted. Upon the rehearing the cause was fully argued by counsel for the respective parties. Three of the members of the Court are now of the opinion that the judgment of the court below should be reversed and the cause remanded for a new trial. Two members of the Court are of opinion that said judgment should be affirmed.
Because of sickness, Mr. Justice ELLIS was unable to be present and hear the argument of the cause pursuant to the rehearing granted. For that reason Mr. Justice ELLIS feels that it would be more seemly for him not to participate in the final disposition of the case.
It is therefore considered, ordered and adjudged by the Court that the judgment of the court below in this case should be, and the same is hereby, reversed, and the cause remanded for a new trial.
BUFORD, C.J., AND WHITFIELD, ELLIS, TERRELL AND BROWN, J.J., AND HUTCHISON, Circuit Judge, concur. *Page 1432
DAVIS, J., disqualified.